The Civil Rights Canon: Above and Below

Brown-Nagin, Tomiko, The Yale Law Journal

ESSAY CONTENTS INTRODUCTION I. THE VISION AND VISIONARIES OF THE CIVIL RIGHTS ERA A. Past and Prologue B. Popular Sovereignty 1. Constitutional Constructs as Mobilizing Tools 2. Constitutional Constructs as Litigation Tool C. Conclusion II. METHODOLOGICAL DIFFERENCES: MATTERS OF PROCESS AND SUBSTANCE A. Beyond Formal Power and Spokesperson-Lawmakers as Representatives B. Why a View from Above and Below Matters 1. Democratic-Process-Based Concerns 2. Substantive Concerns III. EXPANDING THE "WHO" AND "WHAT" IN THE "CIVIL RIGHTS CANON" A. The Many Faces of Dr. Martin Luther King, Jr. B. King's Critiques of Economic Inequality C. A. Philip Randolph and Bayard Rustin: Intellectual Architects of Economic Citizenship as a Component of Equality D. Ella Baker and SNCC: Proponents of State and Local Activism as Elemental to Socio-Economic Change 1. SNCC at MOW 2. Community Organizing as a Political Tool IV. ECONOMIC CITIZENSHIP ABOVE AND BELOW A. The Movement and the EOA: Origins B. The EOA at the State and Local Level: Implementation C. Significance of EOA and Undesirability of a Single Modality of "Higher Lawmaking" CONCLUSION

INTRODUCTION

We the People: The Civil Rights Revolution permits us to reflect on the legacies of one of our most talented constitutional scholars--Professor Bruce Ackerman--and one of the most celebrated social movements of all time--the black freedom struggle. In this book, Ackerman applies an analytical framework that he deployed with tremendous success in past works. (1) Ackerman's project of pinpointing moments of "higher lawmaking" serves a worthy purpose. He hopes to identify certain principles that are beyond the reach of ordinary politics even if they are not products of Article V's cumbersome process for amending the Constitution. (2) In Ackerman's framework, higher lawmaking is premised on a separation-of-powers model of earning popular consent for a new vision of constitutional government. The President, Congress, and the Supreme Court "earn ... broad popular consent" for fundamental constitutional change. (3) The civil rights revolution achieved revolutionary change in this manner, Ackerman explains, under the leadership of President Johnson, storied members of Congress, Martin Luther King, Jr., the Warren Court, and the American electorate. (4)

There is so much about this project to embrace. Many of its essential elements resonate deeply with my own conceptual commitments. Part I of this essay identifies these commonalities in perspective.

Part II sketches how our different methodological starting points produce distinct thoughts about which civil-rights-era actors, political forms, and laws matter most to the civil rights movement's legacy today. Ackerman's book privileges the formal lawmaking process and popular consensus, as reflected in federal legislation and national elections. By contrast, this essay argues for a civil rights canon that honors formal and informal influences on lawmaking, moments of consensus and contest, and federally ratified and locally sanctioned dimensions of the socio-legal agenda established during the civil rights era. From this standpoint, Ackerman's spokesperson-lawmaker model of representation, while compelling, is incomplete.

Part III explores the constituent elements of my vision of the civil rights canon. It supplements Ackerman's rubric along two dimensions. The canon from below supplements the canon from above in its identification of "who" and "what" are important. It finds different figures--who--and different subject matter--what--vital to a civil-rights-era canon. A. Philip Randolph, Bayard Rustin, Ella Baker, and the new abolitionists of the Student Nonviolent Coordinating Committee (SNCC)--representatives of the grassroots and proponents of an economic vision of equality--are vital elements of any civil-rights-era canon. …

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